In this issue: Civil Rights • Collective Bargaining Agreement/Arbitration • Contracts • Employee Termination • Family And Medical Leave Act • First Amendment • Open Meetings • Political Subdivision Immunity • Retaliation • Teacher Termination • Territory Transfer • Tort Liability – Sovereign Immunity • Unemployment
District court denies summary judgment on claim of violation of right to bodily integrity against a school resource officer (SRO), and claim of inadequate training against board, after SRO sprays juice on a student.
Kouider v. Parma City School Dist. Bd. of Edn., N.D.Ohio No. 1:19-cv-02294, 2020 U.S. Dist. LEXIS 150187 (Aug. 19, 2020).
In Sept. 2019, Y.C. was an 8-year-old third-grade student at John Muir Elementary School in the Parma City School District, who was identified with anxiety and attention-deficit hyperactivity disorder. Y.C. had experienced behavioral problems at school since the first grade.
On Sept. 18, during recess, Y.C. refused to let other students use the jungle gym slides, called them names, and pushed and “kind of” kicked people. The district's lead school resource officer (SRO), Antonio Baez, was at the school to train a new SRO, Nick Santora, when they heard screaming at the jungle gym. They responded, and Baez was able to get Y.C. off the jungle gym. Santora apprehended Y.C. when he ran to the parking lot area, and he and Baez escorted Santora to a bench. They restrained Y.C. while he was screaming, yelling and spitting. Baez held Y.C.’s shirt over his face to prevent him from spitting. Eventually, the SROs were able to escort Y.C. to the principal’s office and placed Y.C. into a chair between them. Y.C. continued his behavior, flailing at the SROs, asking for his Doritos and trying to elope. When Y.C. went under a table and unplugged cords from the wall, the SROs pulled Y.C. out by his feet and ankles.
While the principal was searching for Doritos for Y.C., Baez offered Y.C. his lunch bag, including a juice pouch. Y.C. alleged that, when he didn’t want the juice pouch and placed it on the floor, Baez sprayed the juice from the juice pouch on Y.C. Baez stated that he offered the juice pouch to Y.C., then placed it on a table when Y.C. did not want it. When Baez looked away, Y.C. grabbed the juice pouch and intentionally sprayed Baez and Santora. Baez then grabbed the juice box and, when Y.C. tried to hang on, Y.C. "sprayed himself ... underneath his chin."
Santora originally corroborated Baez's version in incident reports but later recanted. In his deposition, Santora testified that, in creating the incident reports, Baez had pressured Santora to present the facts in a light favorable to Baez. But Santora testified that the juice-squirting incident actually transpired as follows: “From what I saw, Tony [Baez] put the straw in. It looked like he may have taken a sip, I'm not sure. He gave the juice box to the kid. The kid grabbed it with two hands, started spraying it all over Tony, the desk, slightly me. Tony grabbed it, ripped it out of the kid's hands, and sprayed it up and down on the kid's face.”
The parties also dispute whether Baez called Y.C., who is Arab-American, a "DACA" (referring to the federal immigration policy called Deferred Action for Childhood Arrivals (DACA)) in the principal's office. Y.C.'s sister testified that Baez pejoratively called Y.C. a DACA during the incident, but Y.C. himself testified that he was not called a DACA, and both Baez and Santora deny that Baez called Y.C. a DACA.
After the juice-squirting incident, the principal returned and gave Y.C. his Doritos and some cold water. A school official contacted Y.C.'s father, who took Y.C. home. The school suspended Y.C. for 10 days.
On Oct. 1, on Y.C.’s behalf, his mother, Souryana Kouider, sued Baez, in his individual and official capacities, claiming that he violated Y.C.’s Fourth and 14th Amendments rights, and the school board for inadequately training Baez and Santora. She also brought state law claims for intentional infliction of emotional distress, assault and battery against both Baez and the board. Baez and the board both filed motions for summary judgment.
The court concluded that Kouider had abandoned her equal protection claims on the basis of disability against both defendants, and intentional infliction of emotional distress, assault and battery against the district by failing to address the defendants’ motion for summary judgment on these claims. The court granted summary judgment on these claims.
The court dismissed Kouider’s 42 United States Code (USC) 1983 claims against Baez in his official capacity because she also asserted a claim against the district for failing to train Baez. It also granted summary judgment for Baez on Kouider’s equal protection claim against Baez. Kouider alleged that Baez "targeted" Y.C. because Y.C. is an Arab-American, based on Baez calling Y.C. a DACA. The court concluded that Kouider’s only evidence of this statement was hearsay and inadmissible.
In her substantive due process claim against Baez, Kouider alleged that Baez violated Y.C.’s due process rights to bodily integrity when he sprayed Y.C. in the face with juice and tried to cover it up. The court concluded that Kouider had demonstrated a factual dispute as to whether Baez's conduct shocks the conscience, although it also stated that it was a close question in light of Sixth Circuit precedent that sets a high bar for conscience-shocking behavior. The court denied Baez’s and the board’s motions for summary judgment on this claim. It also denied Baez’s claim of qualified immunity on this claim. Finally, the court granted summary judgment to Baez on Kouider’s Fourth Amendment claims.
The court denied the board’s motion for summary judgment on Kouider’s 42 USC 1983 claim that the district has failed to adequately train Baez. The court concluded that Kouider had shown enough evidence to create a genuine issue of material fact on this claim.
Finally, the court granted Baez’s motion for summary judgment on Kouider’s state law claim that Baez intentionally inflicted emotional distress on Y.C. However, it denied his motion for summary judgment on Kouider’s state law claim for assault and battery against Baez, finding that Kouider had shown a dispute of fact regarding battery.
COLLECTIVE BARGAINING AGREEMENT/ARBITRATION
Administration moving custodian from first shift to second shift during a three-week period at the beginning of the pandemic did not violate the CBA.
OAPSE Local #688 v. Upper Scioto Valley, AAA Case No. 01-20-0005-6060.
The Ohio governor closed school buildings on March 17, 2020, and then provided stringent guidance for districts to reopen school buildings to staff. Accordingly, the Upper Scioto Valley Local School District designed a plan to stagger teachers beginning May 4 through the end of the school year, May 22. After teachers left the building each day, custodians would enter the buildings to clean and sanitize, as well as other custodial duties.
The board and union reached agreement on two memoranda of understanding regarding the staffing coverage for the parties when union employees were not working. The agreement also gave the superintendent flexibility with respect to scheduling.
A grievance was filed on May 8 by an employee alleging that her supervisor and the superintendent violated the collective bargaining agreement (CBA) by removing her from day shift to evening shift from May 4 to May 22.
The arbitrator determined the claim of the grievant that terms and conditions of employment were violated by the change in shift did not fall within the CBA’s definition of a grievance. Specifically, under the CBA, positions are not awarded by shift; shifts are only for scheduling. Further, another section of the CBA states that no provision guarantees hours per day or per week.
Several provisions of the CBA gave the superintendent power to direct employees, the right to determine work hours, the power to schedule employees and the right to modify work rules, and the exercise of these rights does not require prior agreement from the union. Therefore, because the supervisor and superintendent acted within their rights and did not violate the terms of the CBA, the grievance was denied and dismissed.
Ohio court of appeals finds that trial court erred in dismissing school board’s lawsuit as time barred under a one-year contractual limitations period.
Ada Exempted Village School Dist. Bd. of Edn. v. Ada Wind, LLC., 2020-Ohio-4017.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2020/2020-Ohio-4017.pdf
On June 24, 2009, the Ada Exempted Village Schools Board of Education and Ada Wind LLC entered into a contract known as the Renewable Energy Service Agreement (RESA) for the installation of a wind turbine on the board’s property. In exchange for allowing Ada Wind to install the wind turbine, the board purchased the energy produced by the turbine at a locked-in predictable rate.
In January 2010, the wind turbine was installed, and the board began purchasing the energy that the turbine produced.
On June 23, 2016, a lightning strike caused substantial damage to the wind turbine, rendering it inoperable. The parties agreed that the lightning strike constituted a “force majeure” under the RESA. Thereafter, the board notified Ada Wind of the damage and requested the turbine be repaired.
By June 26, 2017, the wind turbine had not been repaired. As a result, the board notified Ada Wind of its intent to terminate the RESA. The contract allowed the board to give a 30-day notice of termination of the agreement if a force majeure prevented Ada Wind from producing energy for 12 consecutive months and released both parties from liability under the RESA. The board further requested that Ada Wind remove the turbine from its property. Ada Wind entered on the property and removed parts from the turbine for another customer but did not remove the turbine.
The parties agreed to mediate the dispute on May 10, 2018. On Sept. 10, counsel for Ada Wind informed the board’s counsel that Ada Wind was no longer willing to participate in mediation. On Dec. 3, 2018, the board filed a complaint against Ada Wind for a declaratory judgment and breach of contract. Specifically, the board alleged that under the RESA, Ada Wind was required to remove the turbine from the board’s property at Ada Wind’s expense. Ada Wind filed a motion to dismiss, claiming that the board’s complaint failed to state a claim upon which relief could be granted because a one-year contractual limitations period for filing a lawsuit had expired prior to the board filing its complaint. The board filed a response arguing that it initiated the mediation process prior to the one-year contractual limitations period. The board also argued that Ada Wind acted in bad faith when they initially agreed to mediate but then refused.
On Oct. 18, 2019, the trial court issued a judgment entry granting Ada Wind’s motion to dismiss on the basis that the one-year contractual limitations period had expired prior to the board filing its complaint initiating the lawsuit. The board appealed.
On appeal, the court of appeals noted that the parties were in agreement that the one-year contractual limitations period set forth in the RESA began to run upon the board’s termination of the agreement on July 26, 2017. The crux of the parties’ dispute was what effect the agreement between counsel for the board and Ada Wind to pursue mediation in May 2018 had on the running of the contractual limitations period for filing a lawsuit. The board argued that the parties’ agreement to mediate on May 10, 2018, constituted the initiation of an “action” under the RESA and that the trial court erred when it found that the contractual limitations period had barred the filing of its complaint on Dec. 3, 2018.
The court of appeals agreed with the board, noting that nothing in the contract required the parties to interpret the term “action” under the RESA to only mean a lawsuit. As a result, the court held that “any action” as used in the RESA must be broadly construed to encompass all the options of dispute resolution outlined in the RESA, including the section that grants the parties the right to have the dispute adjudicated by a court upon the parties engaging in mediation. The court of appeals reversed the trial court’s ruling.
Ohio court of appeals finds that transfer of cell tower management did not trigger the revenue-sharing provisions of the cell tower lease agreement.
N. Canton Bd. of Edn. v. AT&T, Inc., 822 Fed.Appx 324 (6th Cir.2020).
https://cases.justia.com/federal/appellate-courts/ca6/19-3740/19-3740-2020-07-29.pdf?ts=1596047448
In 2005, the North Canton City’s Board of Education leased property behind North Canton High School’s football field scoreboard to New Cingular Wireless PCS, an indirect subsidiary of AT&T Inc. The lease permitted Cingular to use the premises to build a cell tower.
City regulations require operators of newly constructed cell towers to permit "collocation" until the tower reaches capacity. As a result, the parties included a revenue-sharing provision in the lease for collocation on the cell tower. In addition, the lease originally permitted Cingular to "sublease space on the Premises ... or allow another party's use of the Premises," if Cingular shared its revenue from these activities with the board and obtained the board's reasonable approval for any sublease.
AT&T eventually decided to exit the cell tower management and subleasing business, so it entered into an agreement with Crown Castle International Corp., under which Crown Castle assumed AT&T’s and its subsidiaries management and landlord responsibilities for over 9,100 cell towers. The agreement required Cingular to assign its rights in the premises to a newly created AT&T subsidiary, Tower Holdings, but Cingular kept its Federal Communications Commission licenses, its wireless communications equipment on the cell towers at the premises and its right to use its existing cell tower space. Tower Holdings then entered into a separate management agreement with a subsidiary of Crown Castle, CCATT LLC, where Tower Holdings retained its right, title and interest in the premises but appointed CCATT to manage and operate the premises.
Under the agreement, CCATT received monthly rent payments from preexisting collocation agreements (with Verizon and T-Mobile) and kept AT&T's revenue share from any additional collocation agreements CCATT negotiated as well. CCATT had to pay the board its share of the revenue under the lease and pay Tower Holdings' rent obligation each month. CCAT also had obligations as manager and operator, including general upkeep of the premises, such as a yearly inspection, fence maintenance, weed control and garbage removal. As consideration for everything in the master agreement, Crown Castle paid AT&T a cash lump sum.
After the parties executed the management agreement, CCATT sent the board a letter, notifying it that CCATT was managing the property on AT&T’s behalf. A dispute soon arose about whether the management agreement triggered the lease’s revenue-sharing provision. The board ultimately sued AT&T, Cingular and Tower Holdings, alleging that Cingular and Tower Holdings breached the lease by failing to share revenues earned under the management agreement. The defendants moved for summary judgment, which was granted by the trial court. The board appealed.
On appeal, the court found that the lease required revenue-sharing in the following three scenarios: 1) the lessee subleased the space on the premises, including the cell tower; 2) the lessee allowed another party’s use of the premises, including the cell tower; or 3) the lessee permitted an entity to collocate on the premises. The court of appeals found that the management agreement didn’t fall under any of those scenarios. As a result, the defendants’ failure to share the revenue they received for transferring rights and obligations under the agreement did not constitute a breach of contract.
District court concludes that employee’s assertion that he was starting a union insufficient to overcome his termination based on poor performance.
Grant v. Gahanna-Jefferson Pub. School Dist., S.D.Ohio No. 2:18-cv-963, 2020 U.S. Dist. LEXIS 153072 (Aug. 24, 2020).
https://casetext.com/case/grant-v-gahanna-jefferson-pub-sch-dist
Gahanna-Jefferson City Schools hired Grant in August 2006 as a custodial maintenance worker. He was promoted to custodial manager in August 2015 and, in one month, returned to the position of custodial maintenance worker at his own request. In September 2015, when Grant returned to the custodial maintenance position, his performance began to decline. In both the 2015-2016 and 2016-2017 school years, Grant received negative evaluations and received a written letter of reprimand detailing several deficiencies. Subsequently, the district administration received complaints from Grant’s co-workers complaining of bullying and harassment for several years.
The board of education adopts policies establishing rules and expectations for all of its staff's workplace conduct. For example, Gahanna-Jefferson Board Policy 4210 mandates that all employees "recognize the basic dignities of all individuals with whom they interact in the performance of their duties." Similarly, Gahanna-Jefferson Board Policy 4362 provides that "[t]he Board will vigorously enforce its prohibition against all discriminatory harassment based on race, color, [or] national origin.” On March 16, Grant was placed on an administrative leave while an investigation took place. The investigation revealed additional issues with Grant, leading the district to terminate him on Aug. 9, 2018, for failure of good behavior, dishonesty (stealing time from the district) and neglect of duty.
Grant challenged the termination on the ground that the district was retaliating against Grant for the exercise of his First Amendment right to free speech. This argument was based on a discussion Grant had with a supervisor about the formation of a union to “protect staff from abuses … including the constant requirement to volunteer hours before and after [their] shift[s] for which the staff were not paid.” Grant also stated he told his supervisors he was starting a union, although no evidence was submitted to support this statement.
The court noted that Grant’s speech was related to the formation of a union for personal benefit and for the benefit of other custodians. It did not implicate a political process or the public in any way. Nor was any evidence submitted to show that the discussion about creating a union constituted a matter of public concern. The discussion was for his personal benefit and therefore not considered a protected activity. Grant also failed to provide any evidence that could create a dispute of material fact to show the termination was in retaliation for the exercise of free speech. Absent that showing, the district demonstrated it terminated Grant based on an investigation it honestly believed to have credence. The district’s motion for a summary judgment was granted, and Grant’s termination upheld.
District court grants summary judgment for district on FMLA retaliation and other claims by former principal because no reasonable jury could conclude he was engaged in FMLA-protected activity.
Cox v. Hausmann, N.D.Ohio No. 3:17-cv-02420, 2020 U.S. Dist. LEXIS 181458 (Sept. 30, 2020).
Beginning on Aug. 1, 2015, Matthew Cox served as principal for the Briar Middle School in the Perkins Local School District under a three-year contract. Jodie Hausmann, the district's superintendent, was Cox's supervisor. Although Cox made it through his first year on the job without any significant incidents, several incidents occurred during the 2016-2017 school year, causing his relationship with his employer, and Hausmann in particular, to worsen. Cox resigned from his job in July 2017.
Following some of these incidents, Cox informed Hausmann around Jan. 17, 2017, that his father had a serious illness that might require Cox to take long-term leave on short notice sometime in the future. Cox did not request any leave under the Family and Medical Leave Act (FMLA) before his employment ended, but he contends that many of the acts that follow were retaliation for his expressing his intent to exercise his rights under FMLA.
On Jan. 22, Hausmann issued Cox a directive to attend a Jan. 27 pre-disciplinary hearing to respond to allegations of insubordination, not following board policy and not respecting the chain of command. Cox attended the meeting, but his attorney told Hausmann and the board of education’s attorney that Cox was not prepared to respond to the allegations because he did not have specific notice of them. Cox claimed that Hausmann and the attorney agreed to "properly notice" the specific allegations that were raised during the meeting and address them at a later time.
On Jan. 30, 2017, Cox met with Hausmann, at which time he was placed on a two-day paid administrative leave for a new incident of failure to communicate. Cox claimed that, during this meeting, he asked to meet with the board in executive session, but Hausmann refused his request. Hausmann asked a school resource officer (SRO) to escort Cox to Briar Middle School to obtain his personal belongings and then drive Cox home. Cox alleged that numerous staff members, students and citizens observed the SRO escorting him. The SRO filed a police report about the incident. On Feb. 2, the Sandusky Register posted an article about Cox that asked whether he was being terminated. Hausmann was quoted as saying that she did not anticipate the disciplinary matter involving Cox would lead to termination.
Cox received a written reprimand on Feb. 7, which informed him that his job performance required "improvement regarding communication practices and management of student discipline in order to ensure a safe learning environment for students and staff." There was no other job action taken against Cox. Cox resigned from his employment with the district in July 2017 after accepting an offer of employment elsewhere.
Following his resignation, Cox filed suit, alleging violations of federal and Ohio laws, against the board, and against all five board members, Hausmann, treasurer Dan Bowman and the board’s attorney, in their individual and official capacities. Cox’s claims included constructive discharge, violations of his procedural due process rights, FMLA retaliation, libel, slander, false-light invasion of privacy, publicity given to private life, intentional infliction of emotional distress and intentional interference with business relationships, contractual relationships and employment relationships.[4]
Regarding his procedural due process claim, the court granted summary judgment for all defendants, concluding that that no reasonable jury could find that the conditions at Cox's employment were such that a reasonable person would have felt compelled to leave. It also found that Cox failed to identify any constitutionally protected interest of which he was deprived. It dismissed his FMLA retaliation claims against the individual defendants because they are barred by precedent in the Sixth Circuit. It dismissed these claims against the district because no reasonable jury could conclude that Cox was engaged in activity protected by the FMLA when he told Hausmann that he may need to take leave at some unidentified point in the future.
The court dismissed Cox’s defamation claims based on several alleged defamatory statements because the statements did not give rise to a claim of defamation. The court dismissed Cox’s claim for the tort of false-light invasion of privacy because Cox failed to show that Hausmann had knowledge of or acted in reckless disregard to the falsity of information published in the SRO’s police report and the Sandusky Register article and the false light in which it could place Cox. The court dismissed Cox’s claim for publicity given to private life because he failed to show that a statement Hausmann made about Cox at a levy meeting was sufficiently public to meet the publicity requirement of the claim. It dismissed Cox’s claim for intentional infliction of emotional distress for failure to show that any of the defendants engaged in conduct that was sufficiently extreme and outrageous. The court dismissed Cox’s intentional interference with business, contractual and employment relationships for failing to establish essential elements of each claim.
District court dismisses state breach of contract claim against district because it does not share a common nucleus with federal FMLA retaliation claim and raises novel issues under Ohio law.
Younker v. Bd. of Edn. of the Lorain City School Dist., N.D.Ohio No. 1:20-CV-00486, 2020 U.S. Dist. LEXIS 184179 (Oct. 5, 2020).
https://law.justia.com/cases/federal/district-courts/ohio/ohndce/1:2020cv00486/263763/14/
In March 2018, Jacqueline Younker was hired by the Lorain City School District as chief people officer (CPO) under a three-year contract. The district was under an academic distress commission at the time Younker was hired. Younker’s contract included a provision that the contract would terminate if the district no longer remained under academic distress or there was a transition in the district’s chief executive officer (CEO) during the contract’s term. The contract provided for 90-days of compensation and insurance benefits after termination in either case.
The 2018 contract was amended in May 2019 in a signed memorandum of understanding (MOU). The MOU provided: “Should the District no longer remain under Academic Distress pursuant to Ohio Revised Code (RC) Section 3302.10 and/or there is a transition in CEO during the term of this contract and the Chief's contract is terminated and/or the Chief is otherwise dismissed or separated from employment, he/she shall be compensated for one hundred twenty (120) days of his/her then current base salary based on a 240-day work year. Chief shall also receive insurance benefits during the 120-day period.” In July 2019, the agreement was amended again to increase Younker’s salary.
On Jan. 3, 2020, the district hired Gregory Ring as its interim CEO. Five days later, Younker emailed Ring and informed him she would not be present at work the next morning due to a "prenatal appointment." On Jan. 22, Younker emailed Ring to inform him that she was pregnant and planned to utilize FMLA leave related to her pregnancy, beginning on July 29. On Jan. 31, Ring informed Younker that her employment with the district would be terminated, effective immediately, because her employment agreement terminated when Ring took over as interim CEO. Ring also informed Younker that she would not receive the severance compensation or insurance benefits described in the March 2018 agreement and May and July 2019 amendments.
On March 3, 2020, Younker filed a complaint against the board and Ring alleging retaliation under the Family and Medical Leave Act (FMLA), pregnancy discrimination under Ohio law, aiding and abetting discrimination under Ohio law and breach of contract. In the opinion, the court considered several motions filed by the parties.
The court dismissed the board’s motion for more definite statement to identify the defendant, concluding that Younker’s statement identifying the board as a defendant was neither vague nor ambiguous. Further, the board noted that RC 3313.17 provides that the board of education is a body politic and corporate “capable of suing and being sued.”
Ring filed a motion to dismiss the state claim for breach of contract, which the court granted, and to dismiss the discrimination claims, which the court denied. Regarding the state claim, the court agreed with Ring’s assertion that the court lacked supplemental jurisdiction over the state claim because it did not share a common nucleus with the FMLA claim. The court also agreed that Younker’s claim raised the question of whether the “exorbitant” severance package in her contract and amendments violated public policy, which is a novel issue under Ohio law. The court noted that it could find only one Ohio case addressing severance packages for school administrators, but that case was not determinative in Younker’s case because it involved an administrator who had been terminated for cause.
Regarding both the federal and state discrimination claims, Ring alleged that Younker has failed to state a claim because the automatic termination claim in her March 2018 agreement was not changed by any of the subsequent amendments. As a result, her employment ended by operation of contract on Jan. 3, 2020, when Ring’s employment began, and Younker was not an employee entitled to FMLA leave or protections when she informed Ring of her intention to take FMLA leave on Jan. 22 or when she was notified that her employment was terminated “effective immediately” on Jan. 31. The court concluded that, even if her employment contract was terminated on Jan. 3, Younker continued to perform her duties and remained an employee of the district, and therefore an eligible employee under FMLA until she was informed of the termination effective immediately on Jan. 31.
District court grants summary judgment for school district and upholds the constitutionality of its public participation policy.
Ison v. Madison Local School Bd., S.D.Ohio No. 1:19cv155, 2020 U.S. Dist. LEXIS 181329 (Sept. 30, 2020).
https://casetext.com/case/ison-v-madison-local-sch-bd-1
Following a shooting in the district’s high school that injured four students, the Madison Local School District Board of Education considered whether to arm some of its staff members, teachers and administrators. The district’s policy on public participation allowed any person with a legitimate interest in the actions of the board to participate during the public portion of a meeting. The policy required individuals who wished to speak to register their intention two days before the meeting, complete a public participation form and provide proof of residence in Madison Township. Each person was limited to three minutes with a total of 30 minutes available for public comment. The policy also allowed the presiding officer to prohibit statements that were antagonistic, obscene or irrelevant, request any individual who did not observe reasonable decorum to leave the meeting, and request the assistance of law enforcement in the removal of a disorderly person whose conduct interfered with the orderly progress of the meeting.
Billy Ison attended a meeting of the board on May 22, 2018. He alleged that he was only permitted to speak for half of his allotted three minutes. The board president interrupted Ison when he made comments that were threatening. The board president asked Ison to continue, but Ison was interrupted by another board member for making false and slanderous comments. When Ison continued to speak, the board president asked the district’s school resource officer (SRO) to remove Ison. Ison then concluded his remarks and left the meeting room with the SRO.
Ison and other plaintiffs attended a board meeting on Jan. 22, 2019. Three plaintiffs were not permitted to speak because Ison had submitted their public participation forms on their behalf, which was inconsistent with the policy. Finally, plaintiff James Cullen alleged that he would not be able to participate during the meeting because he was not a resident of the district.
The plaintiffs sued the district in February 2019, asking the court to grant a temporary restraining order (TRO) and preliminary injunction barring the board from enforcing some portions of its public participation policy. The plaintiffs argued that the policy violated the First Amendment right to speech because it was vague and overly broad. They also argued that the in-person registration requirement and the proof of residency requirement were invalid prior restraints on expression. On July 2019, the court denied the plaintiffs’ motions for TRO and preliminary injunction.
In this decision, the court concluded that a school board meeting is a limited public forum “limited to use by certain groups or dedicated solely to the discussion of certain subjects.” In a limited public forum, the government may restrict speech provided that the restrictions are viewpoint neutral and reasonable in light of the purpose served by the forum. The court concluded that the board’s restrictions prohibiting objectionable content were nonetheless directed to the viewpoint-neutral criterion of preventing disruption of the board’s meeting. For that reason, the court concluded the limitation was permissible because it preserved the purpose of the limited forum.
The court then turned to whether the prohibition against disruptive speech was a valid time place, and manner regulation on speech. The court referred to its conclusions in the July 2019 opinion, that the policy was not based on the subject matter of the speech. It also concluded that the policy was a content-neutral time, place and manner regulation, narrowly tailored to serve the government interest of preserving orderly, productive meetings. It also reiterated its conclusions that the policy was not overly broad, vague or a prior restraint on speech. Regarding the residency requirement, the court concluded that the person raising the complaint did not have standing to raise the issue because he was not barred from speaking for this reason. He was barred from speaking because he had not completed his own public participation form.
The court denied plaintiffs’ motion for summary judgment, granted the board’s motion for summary judgment and closed the case.
Circuit court upholds summary judgment for district in teacher’s claim regarding his termination for making false claims against other district educators related to testing improprieties.
Fledderjohann v. Celina City School Bd. of Edn., 6th Cir. No 20-3021 (Aug. 27, 2020), 2020 U.S. App. LEXIS 27564.
Gregg Fledderjohann was a teacher in the Celina City School District for 22 years, primarily teaching third grade. But in 2018, the board of education fired him after it determined that he had made false accusations against fellow teachers. Fledderjohann had written an anonymous email to the Ohio Department of Education (ODE) alleging that he had witnessed several acts of dubious propriety in connection with a state-administered exam. The district investigated the allegations, concluded that there had been no cheating and that Fledderjohann had made up the accusations.
After being fired, Fledderjohann sued the school board, several board members and the district superintendent, asserting the district improperly fired him for engaging in protected speech. The district court granted summary judgment for the district on Fledderjohann’s claims.
The sole dispute for the circuit court was whether Fledderjohann's correspondences with ODE were protected speech and, more specifically, whether he spoke as a public employee or a private citizen. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
The context of Fledderjohann's email to ODE was characterized by the court as that of a "concerned educator" who wanted to know whether certain practices were "ok" or "allowed." Moreover, his deposition statements characterized his correspondences to ODE as asking for "clarification" and more concerned with whether he had "missed opportunities" to help his students and did not reflect any desire to blow the whistle on purported testing violations. However, his allegations were knowingly false and violated several board policies regarding honest and ethical conduct. These false statements resulted in his termination.
The court held that Fledderjohann failed to demonstrate a genuine issue of material fact about whether he spoke as an employee when he corresponded with ODE and thus could not establish that his speech was constitutionally protected, precluding a First Amendment retaliation claim. The district court's grant of summary judgment in favor of the school district was affirmed.
Appeals court concludes that board’s attempt to nonrenew a treasurer is invalid because of a violation of RC 121.22.
State ex rel. Jones v. Dayton Pub. Schools Board of Edn., 2020-Ohio-4931.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2020/2020-Ohio-4931.pdf
Craig Jones was employed as treasurer by the Dayton City School District under a three-year contract that began on Aug. 1, 2013, and was to end on July 31, 2016, unless terminated earlier. In February 2016, the board held a special meeting and voted to nonrenew Jones’ contract. However, the notice to the public for the meeting did not align with the purpose of the meeting and did not state an actual purpose. Since Ohio Revised Code (RC) 121.22(H) requires invalidation of actions taken at meetings that violate the Open Meetings Act (OMA), the notice to nonrenew Jones is deemed to have not occurred. The board's failure to send him further notices of nonrenewal pursuant to RC 3313.22(A) made Jones reemployed by operation of law. Under the statute, Jones was entitled to a one-year term of reemployment.
On June 7, 2019, the magistrate filed a decision concluding that, under the language in RC 3313.22, Jones was entitled to the amount of his base pay, minus setoffs, for one year, and to the standard 14% contribution to the School Employees Retirement System (SERS). These damages totaled $42,345.78. In addition, the magistrate found that Jones was entitled to attorney’s fees under RC 121.22(I) because the board met one, but not both, of the requirements that would allow the court to reduce or deny attorney’s fees. The magistrate concluded that, while the board based its special meeting notice on ordinary principles of law, there was no showing that the board believed it was serving public policy. Both sides objected to the magistrate’s decision. The trial court agreed with the magistrate that Jones was only entitled to a one-year renewal contract but concluded that additional amounts ("increments") should be added to the damages. After applying setoffs, the court granted Jones a total of $82,482.58. The court also sustained the board's objection, concluding that Jones was not entitled to attorney fees under RC 121.22(I).
Jones contended that due to his employment being automatically renewed by operation of law, the board needed to send nonrenewal notices for the next two years as well and should be due the salary for that time period. The appeals court disagreed, stating the clear intent of the statute is to extend employment for one year only, based on the board of education's failure to comply with statutory requirements. There was no requirement to reissue a contract, only a requirement to extend employment for one year and therefore breach of contract issues were not scrutinized.
The next issue the court tackled was the relevant part of RC 3313.22(A) that states, "[a]t the expiration of a treasurer's current term of employment, the treasurer is deemed re-employed for a term of one year at the same salary plus any increments that the board may authorize." The dispute the court analyzed was over the meaning of "increments." The court looked to Merriam-Webster and to the term being used in teacher contract statutes for the definition. The court determined the term “increments” was only in reference to salary schedules and no other forms of compensation. Having determined the application of the word "increment" was consistent, the appeals court concluded that there was no basis for including the annuity or the additional SERS contributions as part of Jones' damages and that the magistrate’s monetary award was correct.
The appeals court noted that, under RC 121.22(I)(2)(a), attorney’s fees are mandatory in the type of action filed by Jones unless the court decided that neither of the prongs in RC 121.22(I)(2)(a) exception applies. Here, the board did not execute the meeting for the stated purpose in the notice and then changed the agenda the following day to align to the actual meeting. The changing of the agenda added to the court’s determination that the board knew it was not in compliance with OMA. The court went on to state it was “not aware of any case law permitting public bodies to mislead the public by including language in notices that disguises what the public body actually intends to do.” Therefore, the appeals court reversed and remanded to the trial court for a determination of reasonable attorney fees.
POLITICAL SUBDIVISION IMMUNITY
Appeals court determines plaintiffs did not proffer an exception to immunity for intentional and negligent torts claims.
Fried v. Friends of Breakthrough Schools, 2020-Ohio-4215.
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2020/2020-Ohio-4215.pdf
On Jan. 26, 2017, while Alianna DeFreeze was enrolled as a student at Entrepreneurship Preparatory School Woodland Hills (EPrep), she was abducted and murdered on her way to school. DeFreeze’s parents, Donnesha Cooper and Damon DeFreeze, brought claims against the school, Friends of Breakthrough Schools, Cleveland Metropolitan School District and others for wrongful death, negligence, fraudulent misrepresentation, negligent and intentional infliction of emotional distress, nuisance and spoliation of evidence. Among other things, Cooper and DeFreeze alleged in their complaint that EPrep did not notify them of Alianna's absence from school until Cooper called EPrep in the afternoon of Jan. 26.
At the trial court level, EPrep filed a motion to dismiss the complaint for failing to state a claim upon which relief could be granted. EPrep argued that it was immune from liability under Ohio Revised Code (RC) Chapter 2744. The trial court denied EPrep’s motion, reasoning that additional discovery was necessary to determine whether the conduct involved was a governmental function for purposes of immunity. EPrep appealed.
The appeals court skipped tier one of the three-tiered analyzes for political subdivision immunity as EPrep was a well-established political subdivision. The court noted that, in the second tier, the burden shifted to the plaintiff to establish an exception to the immunity.
Regarding the intentional tort claims against EPrep, the court noted that there is no exception to immunity for intentional torts. DeFreeze’s parents argued that the court could craft an exception to immunity for intentional torts in this case because of the egregious nature of the school’s conduct. The court disagreed and said that to create such an exception would be at odds with judicial precedent and legislative intent, as well as precariously vague. The court sustained EPrep’s first assignment of error, agreeing that the trial court erred by failing to dismiss the intentional tort claims against it.
In regard to the negligence claim, the trial focused on whether the taking of attendance was a governmental or proprietary function. The appellate court cited multiple cases courts have found that "most school activities and administrative functions of the educational process, even if not directly comprising part of the classroom teaching process," are governmental functions because they are fundamental to the provision of public education. The court also pointed to Ohio court cases including extracurricular activities, personnel decisions and a school's submission of student attendance and grade information as governmental functions. Although the plaintiffs argued that the use of nongovernmental technology companies to institute the parental notification system should make it proprietary, the court disagreed. It concluded that, while EPrep may have voluntarily contracted with nongovernmental technology companies to implement its parental notification system, the method by which EPrep elected to take attendance and notify parents of unexcused absence was not dispositive of whether that activity was a governmental or proprietary function. The court determined, although nongovernmental technology companies were engaged in attendance taking and notification, they were engaged to do so at the instruction of EPrep. The court concluded that taking attendance and parental notification were governmental functions and the exception in RC 2744.02(B)(2) did not apply.
The court then focused on RC 2744.02(B)(4) to determine whether the injury occurred on the grounds of buildings used in connection with a governmental function, and whether the injury was due to physical defects of those grounds or buildings. It concluded that the exception did not apply. Even if the plaintiffs satisfied the first element, the court held that a "malfunctioning" parental notification system did not constitute a physical defect of the sort envisioned by the legislature in crafting the statutory exception. Finally, the court concluded that no other exceptions applied to the case and that plaintiffs failed to meet their burden. The court reversed the trial court’s judgment and remanded for proceedings consistent with its opinion.
Sixth Circuit Court of Appeal reverses district court’s grant of summary judgment in favor of school board on nurses’ retaliation claims.
Kirilenko-Ison v. Bd. of Edn. of Danville Indep. Schools, 974 F.3d 652 (6th Cir.2020).
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0298p-06.pdf
The plaintiffs are two nurses who were employed by the board of education of Danville Independent Schools. The nurses assisted the school in developing Section 504 plans for several students with diabetes. In one case, the nurses disagreed with the implementation of a student’s 504 plan by the parents, resulting in the nurses filing a complaint with the Cabinet for Families and Children for suspected neglect. In another case, the nurses disagreed with the terms of a 504 plan, believing that the proposed plan would be detrimental to a student’s health and would have placed the nurses’ nursing licenses in jeopardy.
One of the nurses was not rehired after the completion of her contract. The other nurse indicated she would no longer provide care to the student under the proposed 504 plan. The mother of one of the students filed a complaint. The board’s investigation resulted in a five-day suspension for one of the nurses for “placing [the student’s] rights to a free appropriate public education into jeopardy.” Six months after she served her suspension, the nurse voluntarily resigned from her position.
Both nurses sued the district for illegal retaliation under the Americans with Disabilities Act (ADA), Section 504 and various Kentucky state laws. The district moved for summary judgment, which was granted by the district court (SLS 2019-3). The nurses appealed.
On appeal, the court reversed the district court’s decision and found that the nurses engaged in protected activity and demonstrated a causal connection between their protected activity and the board’s actions. Both nurses were disagreeing with the board about the accommodations that should be provided to students under their respective 504 plans. The court found that their arguments were similar to case precedent that found that a plaintiff was engaged in protected activity when the plaintiff challenged the school’s deficient administration of a free appropriate public education.
The board also found a causal connection between the adverse action and the nurses’ protected activity. At the first meaningful opportunity to retaliate against one of the nurses, the board failed to rehire her when she applied for a full-time nursing position. The court found that the circumstantial evidence of retaliatory motive, coupled with the temporal proximity between the conclusion of the nurse’s contract and the board’s failure to rehire her, was sufficient to create a genuine dispute as to causation.
As a result, the court reversed the district court’s grant of summary judgment in favor of the school board on the nurses’ retaliation claims under ADA, Section 504 and Kentucky state laws. The case was remanded for further proceedings.
Appellate court reinstates terminated teacher shown to have dragged student 126 feet by his arm down a hallway.
Fiedeldey v. Finneytown Local School Dist. Bd. of Edn., 2020-Ohio-3960.
https://casetext.com/case/fiedeldey-v-finneytown-local-sch-dist-bd-of-educ
Darla Fiedeldey was employed as a kindergarten teacher at Brent Elementary School in the Finneytown Local School District for 17 years. She consistently received the highest ratings for her job performance and, before the incident that led to her termination, had no previous disciplinary issues. In November 2017, the board notified her that it had initiated proceedings under Ohio Revised Code (RC) 3319.16 to terminate her teacher contract for "good and just cause" because Fiedeldey had engaged in an inappropriate physical interaction with a kindergarten student when she dragged the student 126 feet down a hallway by the student's arm while the student was on the floor.
Upon receipt of the board's notice, Fiedeldey exercised her right under RC 3319.16 to demand a hearing before a referee regarding her termination.
The referee issued a decision finding that Fiedeldey had dragged the student the full 126-foot distance from the boys' restroom to her classroom. The referee noted that her job performance evaluations had consistently given her the highest "distinguished" ratings and contained many laudatory remarks about her performance. However, the referee found that good and just cause existed for termination and recommended that Fiedeldey be terminated.
In May 2018, the board accepted the hearing officer's recommendation and terminated Fiedeldey's employment.
Fiedeldey appealed the board's decision to the Hamilton County Court of Common Pleas pursuant to RC 3319.16. The court determined that the weight of the evidence did not support the termination of Fiedeldey's employment. The court entered a judgment overruling the board's decision, reinstating her and awarding damages. The district appealed, arguing that the court abused its discretion in determining that the board’s decision was not supported by the weight of the evidence.
The trial court determined that the board's finding of good and just cause was not supported by the weight of the evidence. The court found that Fiedeldey did not place the student in harm's way. The court determined that Fiedeldey had moved the student "in a manner that was intended to cause no harm, but [to] maintain control of the situation." The court found that Fiedeldey was a well-respected teacher who had no prior disciplinary record prior to the dragging incident. The court noted that Fiedeldey was "held in a high regard" as being one of the few teachers that could handle the student and that the school had acknowledged its confidence in her judgment by placing the student in her classroom for two consecutive years. The board appealed.
In its appeal, the board argued that the trial court failed to give deference to the findings of fact made by the referee. Specifically, the board pointed to the trial court's statement in its decision that "[a] teacher needs to have the ability to control the situation with an unruly student, when the student's safety is compromised and there are no reasonable alternatives at the moment to address the situation." The board contended that this finding by the trial court "flies in the face" of the referee's findings.
However, the court of appeals noted that the common pleas court, while giving “due deference” to the referee’s findings, determined that the same facts did not rise to the level of good and just cause for termination. Despite some intemperate remarks by the common pleas court’s justices, the appellate court did not find the lower court abused its discretion in finding for Fiedeldey and ordering her reinstatement and the awarding of damages.
Territory transfer law declared unconstitutional by U.S. District Court for the Southern District of Ohio.
Plain Local School Dist. Bd. of Edn. v. DeWine, S.D.Ohio No. 2:19-cv-5086, 2020 U.S. Dist. LEXIS 170858 (Sept. 11, 2020).
https://www.ulmer.com/wp-content/uploads/2020/09/PLSD-Order.pdf
In 2019, the General Assembly enacted Ohio Revised Code (RC) 3311.242, creating a new mechanism for territory transfers in the last biennial budget bill, House illB (HB) 166. RC 3311.242 allowed owners of property in any township with more than one school district to petition to move their property from one school district to the other. In order to be placed on the ballot, the petition had to have signatures from at least 10% of the electors residing in the territory to be transferred. If the transfer was approved by voters, the district board losing the territory was required to notify the State Board of Education. Unlike the existing territory transfer law requiring the State Board to approve the transfer from one district to another, RC 3311.242 only required the State Board to approve an agreement memorializing the transfer after it had been approved by voters.
The language became effective on Oct. 17, 2019. Shortly thereafter, a group of homeowners from the Village of Hills and Dales used the new process and requested that their territory be transferred from Plain Local to Jackson Local. Plain Local filed suit in federal court to block the transfer from taking place. Plain Local argued that, if allowed, the transfer could increase segregation and undermine students’ rights to an equal education.
The U.S. District Court concluded that inclusion of the new transfer statute in the biennial budget bill was a violation of Ohio Constitutional Art. II, Sec. 15(D), the one-subject rule: “[N]o bill shall contain more than one subject, which shall be clearly expressed in its title.” The court found that the language, added as an amendment toward the end of the consideration of HB 166, was a significant, substantive and controversial amendment to the bill. The court found that the transfer language, which was "slipped in as two pages of a bill over 1,000 times that length," didn’t have a “discernible practical, rational or legitimate relationship” to the budget and should not have been added to the bill. The court concluded that, because there was no common purpose or relationship between the transfer statute and the state budget, it violated the one-subject rule.
TORT LIABILITY – SOVEREIGN IMMUNITY
Supreme Court of Ohio reverses appeals court decision and concludes that immunity applies to district employees in case involving student injured by another student.
A.J.R. v. Lute, Slip Opinion No. 2020-Ohio-5168.
https://supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-ohio-5168.pdf
A.J.R. started kindergarten in the Toledo Public Schools at four years old. Her parents reported that she had been subjected to a pattern of bullying by her five-year-old classmate, S. The bullying included name calling, teasing, social exclusion and physical bullying. The bullying culminated when the two kindergartners were seated next to one another at a table with sharpened pencils and S. punctured A.J.R.'s cheek with a pencil. The parents claimed that three school district employees, A.J.R.'s classroom teacher and the principal and assistant principal in her building, were told of the previous bullying incidents and failed to protect A.J.R. from S., who was a known risk.
The trial court had dismissed the claim against the school employees, concluding that they were entitled to immunity under Ohio law. Immunity would not apply if the employees were reckless or acted or failed to act with a conscious disregard or indifference to a known or obvious risk. The court found that there was no evidence that S. had a history of harming other students or staff and no way to demonstrate the educators disregarded or were indifferent to any known risks. A.J.R.’s parents appealed the decision.
The appeals court overturned the trial court's decision, concluding that there was a genuine issue of material fact requiring further proceedings at the trial court level to determine whether the staff members were reckless. The educators appealed, and LAF, along with the Buckeye Association of School Administrators, Ohio Association of School Business Officials and Toledo Association of Administrative Personnel, prepared an amici brief supporting immunity for the district employees.
The Supreme Court agreed with the trial court that the employees in this situation were not reckless, did not act with a perverse disregard of a known risk and were entitled to immunity as a result. It concluded that there was no evidence that the educators should have been aware that S. would physically harm A.J.R. in the alleged pencil incident. Further, even if they had been aware, the court concluded that the employees did not disregard any risk. All three took time to address the class to curtail bullying and communicated with A.J.R. to ensure she was not experiencing any bullying.
The court's decision reinstated the trial court's grant of summary judgment to the district employees. This ends the case against them.
Appeals court concludes that striking school employees are not entitled to collect unemployment compensation during a strike.
Ohio Ass'n of Pub. School Emps. v. Unemp. Comp. Rev. Comm., 2020-Ohio-4028.
https://www.leagle.com/decision/inohco20200810376
On March 12, 2019, the Ohio Association of Public School Employees (OAPSE) filed a Notice of Intent to Strike with the Claymont City School District. The notice filed with the State Employment Relations Board (SERB) indicated the strike would commence at midnight on Friday, March 22, 2019. OAPSE and the board of education met on March 18, 2019, and again on March 21, 2019, lasting into March 22, 2019; however, the parties were unable to reach an agreement. Thereafter, appellants ceased work on March 22, 2019. Appellants filed claims for unemployment compensation with the Ohio Department of Jobs and Family Services (ODJFS).
A hearing was held on April 16, 2019, to determine whether the unemployment of appellants was due to a lockout or a labor dispute other than a lockout. The parties' labor dispute ended on April 16, 2019, and appellants began returning to work on April 17, 2019. On May 10, 2019, ODJFS issued a decision on the labor dispute issue. The hearing officer found that OAPSE deviated from the status quo by starting a work stoppage instead of continuing work under the previous agreement until there was a new agreement reached by both sides. The hearing officer concluded that all of the claimants were unemployed due to a labor dispute other than a lockout beginning on March 22, 2019 and ending on April 16, 2019. The claimants are disqualified from receiving unemployment compensation benefits for the week which includes March 22, 2019, through the week which includes April 16, 2019, pursuant to Ohio Revised Code 4141.29(D)(1)(a).
On June 20, 2019, the commission issued a decision disallowing an application for appeal from a decision of the director in a labor dispute case, which disallowed OAPSE's application for appeal. OAPSE then filed an administrative appeal in the court of common pleas on July 18, 2019. The trial court issued a written decision and entry on Jan. 30, 2020, upholding the denial of benefits. OAPSE appealed yet again.
The appellate court found that in OAPSE’s action seeking unemployment compensation benefits during a strike, the trial court did not err in adopting ODJFS’s determination that employees were not entitled to benefits since the board of education did not withhold work from employees and was willing to continue under the terms of the prior contract until new agreement was reached. The court concluded that the employees’ strike was a labor dispute rather than a lockout.